The 2006 Criminal Justice Acts strengthened measures directed at organised crime. A criminal organisation means a structured group howsoever organised that has its main purpose or activity, the commission or facilitation of serious offences. A serious offence is one for which a person may be imprisoned for four ears or more.
A structured group is a group of three or more persons which is not formed randomly for the commission of a single offence where the involvement by two or more members is with a view to acting in consort. A structured group may exist notwithstanding the absence of formal roles, memberships, rules, hierarchic or leadership structure or the continuity of involvement of any person. Facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated or that an actual offence be committed.
Inside or Outside State
A person who conspires whether in the State or elsewhere with one or more persons to do an act in the State which is a serious offence or in a place outside the State which would be a serious offence under the law of the State, is guilty of an offence irrespective of whether that act actually takes place or not.
The provisions apply to a conspiracy committed outside the State
- if the offence, the subject of the conspiracy was committed or intended to be committed in Ireland or against an Irish citizen
- the conspiracy is committed on board an Irish ship, aircraft
- the conspiracy is committed by an Irish citizen or a person ordinarily resident in the State.
A person charged with an offence under this provision is liable to be indicted, tried, and punished as a principal offender.
Directing a Criminal Organisation
It is an offence to direct a criminal organisation. A person directs a criminal organisation if he controls or supervises activities or gives an order, instruction or guidance or makes a request with respect to the carrying out of the activities. This includes activities carried on outside the State and activities that do not themselves constitute an offence.
A person who directs at any level of an organised structure, the activities of a criminal organisation is guilty of an offence and is liable on conviction on indictment to imprisonment for life or lesser term.
A statement made verbally or in writing or conduct by a defendant implying or leading to the reasonable inference that he was at the material time, directing the activities of a criminal organisation, is admissible as evidence that he was so doing.
A jury may draw inferences from any evidence of a pattern of behaviour on the part of the defendant consistent with his or her having directed the activities of an organisation concerned at the relevant time. They may also consider whether he has received any benefit from the organisation and evidence as to his possession of items, documents or other records which would give rise for a reasonable suspicion that such articles, documents, or records were in his possession or control for a purpose connected with the directing of the activities of the organisation concerned.
Documents or records emanating from the organisation from which it might be inferred as to the giving of an instruction, order, or guidance by the defendant to any person involved in the organisation, the making of a request of a person so involved or the seeking by the third party so involved of assistance or guidance from the defendant, is evidence that the defendant was directing the activities of the organisation concerned at the material time.
Evidence by a member or former member of An Garda Síochána who appears to possess the appropriate expertise is admissible as proof of the existence of a particular criminal organisation. Expertise means experience, specialist knowledge, or qualifications. It is permissible for the expert in forming the opinion to take account of previous convictions for arrestable offences, believed by that expert to be part of the organisation to which his opinion relates.
The following are evidence that a particular group exists and consititutes a criminal organistion ; documents and records emanating or appearing to emanate within the group or created by the defendant
- from which the group’s existence as a criminal organisation may be inferred,
- from which the commission or facilitation by the group of a serious offence or its engaging in activity can be inferred or
- that uses or makes reference to a name, word or symbol that identifies the group as a criminal organisation from which that name, word or symbol or the representation can be inferred, that is such an organisation.
The provision by a group of three or more persons of a material benefit to the defendant or promise to provide such benefit which is not in return for a lawful act is also evidence that the group constitutes a criminal organisation.
Participation and Contribution
It is an offence for a person with knowledge of the existence of the organisation to participate or contribute to any of its activities tending to enhance the ability of the organisation or its members to commit or facilitate the commission by a criminal organisation or any of its members of a serious offence.
It is an offence to do so being reckless as to whether the participation or contribution could either enhance the ability of the criminal organisation or any of its members to commit or facilitate the commission of by the criminal organisation or any of its members of a serious offence.
If a person guilty of an offence under this provision is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 15 years.
The commission of a serious offence includes acts outside the State which constitute a serious offence under the law of that place and which if done in the State would constitute a serious offence.
In proceedings under this provision, it is not necessary to prove that the criminal organisation concerned or its members actually committed a serious offence, that the participation actually enhanced its ability or facilitated the commission of a serious offence or knowledge on the part of the defendant of this specific nature of any offence.
In deciding whether the person participates or contributes to the activity above, the court may consider whether he uses a name, word, symbol or representation that identifies or is associated with the criminal organisation or receives any benefit from the organisation concerned.
- It is presumed unless the contrary is shown that the participation or contribution the defendant was engaged in was made with a state of mind on the defendant’s part required by the offence, if the circumstances under which it was committed involved either possession or the presence of one or more of the articles mentioned below,
- their being present in any vehicle which appears to be connected with the relevant act of which the defendant or one or more persons were occupiers,
- any such article or item and the circumstances are such as to give rise to a reasonable suspicion that the defendant’s state of mind was as aforesaid at the time of committing the offence.
The designated items include
- balaclava, boiler suit, or other disguise including Gardaí uniform or equipment
- firearms or imitation of firearms
- housebreaking instruments including stolen keys, cards and codes
- premises, plans of premises or structures not related to a lawful activity
- controlled drugs
- substantial amounts of cash or currency unrelated to a lawful activity
- false vehicle registration
- items for making counterfeit currency or debit cards
- articles for making copies of any works being an article indicating that it would likely to be used on a substantial scale of infringing copies without the copyrights owner’s consent
- any other prescribed items
Inferences may be drawn in relation to these offences by failure to answer questions. Where evidence is given that the defendant either at or before the time he was charged, on being questioned failed to answer a question material to the investigation, then the court in determining guilt may draw such inference from the failure as appear proper. The failure to so respond may be capable of collaboration of an offence. However, a person shall not be convicted solely or mainly based such an inference.
Before such an inference can be drawn, the defendant must be told in ordinary language when being questioned, the effect of failure to respond. The defendant must also be given a reasonable opportunity to consult his solicitor before such a failure occurred.
Nothing is to prejudice the admissibility of evidence of silence under any other statutory provision.
The court on the purpose of drawing an inference shall have regard to the time when an answer was first given. The provision does not apply to the questioning of a person unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.
The provision applies to questions which are material to the investigation of the offence. These includes questions requesting a defendant to give a full account of his movements, activities, actions, or associations during a specific period relevant to the offence and whichever one or more than one of the following is relevant
- a question relating to a statement or conduct related to a criminal organisation
- a question relating to the benefits which the member of An Garda Síochána reasonably believes was deceived
- a question relating to articles, documents, and records
- questions relating to documents of a type created or purporting to be created by the defendant or found in his possession on or about the time of his arrest on foot of a lawful search warrant
- a question relating to the suspected use by the defendant in a document or suspected reference to / of a name, word, symbol, or other representation
- a question relating to the possession or presence in a vehicle in the above circumstances of the abovementioned articles or items.
No question is to be regarded as, material unless the member of An Garda Síochána concerned reasonably believed the question related to the participation of the defendant in the commission of the offence.
A failure to answer includes references to the giving of an answer that is false or misleading. References to silence or other reactions are to be interpreted accordingly.
A person who commits a serious offence for the benefit of at the direction or in association with a criminal organisation is guilty of an offence. In proceedings for such offence, it is not necessary to prove that the person concerned knew of any of the persons who constituted the criminal organisation. A person guilty of an offence under this provision is liable on conviction on indictment to a fine or imprisonment not exceeding 15 years.
When a court is deciding sentence for a serious offence, it is to be treated as an aggravating factor that it was committed in part or in furtherance of the activities of the criminal organisation.
A court shall except where the sentence for the serious offence is one of imprisonment for life or where the court considers there are exceptional circumstances which justified it not so doing, impose a sentence that is greater than that would have been imposed put for this aggravating factor. This sentence is not to be greater than the maximum sentence permissible for the serious offence.